Sifting through the legalease

Well here we are over half way through 2013. On the legal front a lot of changes have taken effect this year, many of them quite worrying:- Legal Aid cuts; further Court closures and cuts to Court Staff. The push continues towards making civil litigants go through some form of Alternative Dispute Resolution, such as Mediation or a Joint Settlement Meeting, which whilst often extremely useful, may not always be the most just way of resolving litigation.

There are also fundamental changes to the way in which personal injury litigation is funded post April 2013. Instead of the Success Fee under a Conditional Fee Agreement being recoverable against a losing Defendant (usually their Insurers). The Success Fee will in future be recoverable out of the damages awarded to the Claimant. There is an uplift on General Damages to be awarded to compensate for this. There are however going to be difficulties with this, where a large component of the Losses claimed relate to financial losses (typically loss of earnings or care) I can think of one Traumatic Brain Injury case we are running currently where the Claimant’s legal costs of running the case to Trial will total circa £500,000, ignoring Success Fee, and the bulk of the Losses claimed relate to Special Damages for Loss of Earnings (past and future) and ongoing care requirements. The General Damages for the actually injuries sustained are far from huge.

If a similar case was being run under the new regime, i.e. where a retainer is signed post April 2013, the small uplift on General Damages awarded (maybe £10,000 or so) would fall way short of the Success Fee which most Claimant Personal Injury Lawyers would seek to recover out of the Damages ultimately awarded to the Claimant, which on the figure above would be likely to run into the hundreds of thousands of pounds. Obviously it remains to be seen just how the new system will work in practice. . . . !

The intended expansion of the scope of the RTA portal dealing with injuries resulting from road traffic accidents, and the cuts in the fees which Claimant Solicitors will be able to claim, will I am afraid result in a lower level of service and in a goodly number of cases may well result in Claimant’s being under-compensated. Last year I had one case where our Client suffered a whiplash injury. He had been advised by a previous firm of Solicitors that his Claim was worth circa £1,500 on the basis of some very poor medical evidence, obtained by that firm on his behalf. The Client was furious, as he knew the impact that the injury was having on him day to day. Accordingly, he sought a second opinion from Lloyd Rehman & Co. We looked at the case afresh, obtained a medico-legal report from a more experienced Expert which showed that the Claimant had suffered far more serious injuries than the original Expert had thought. Ultimately we settled the Claim at just under £60,000, which we considered to be a decent outcome, as did the Client. Had this Claim fallen to be dealt with under the RTA Portal scheme, then it would almost inevitably have been settled at the £1,500, as there would have been little scope for instructing a fresh Expert.

Lloyd Rehman & Co. had an interesting long-running Employer’s liability case which came to a conclusion towards the end of 2012. The case involved a Teacher at a Special Needs School who was seriously injured when a severely autistic child hurled an object in her direction and unfortunately, her head got in the way. The Local Authority’s argument was to the effect that there was absolutely no way that they could have foreseen that the child would have thrown the object, and so there was nothing which the LA could have done to reduce the risk of such an injury. After three years of seeking proper and full disclosure of all relevant documents from the LA, we managed to show that the child had a history of disruptive and violent behaviour, and further that the LA had failed to undertake adequate risk assessments. Following on from the reasoning in the Vaile v. London Borough of Havering case in the Court of Appeal, this was sufficient to persuade the LA to negotiate a settlement of the matter approximately one week before the scheduled Trial. Our Client walked away with a decent five figure settlement plus Costs, and felt vindicated that she had at last received some acknowledgement that the School were at fault for an accident that had cut short her teaching career.

Nigel Lloyd

2 Responses to “2013 and all that!”

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I am so thrilled I stumbled upon your blog. I really found you by mistake, while I was surfing on Bing for something else. I agree with what you said in your article. I never looked at it that way. Thanks for sharing.